Gayot v. Perez et al
| Andrew Gayot |
| Ada Perez, C. Candidus and C. Vines |
| 1:2016cv08871 |
| November 15, 2016 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Dutchess |
| Colleen McMahon |
| Prison Condition |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
61
OPINION & ORDER re: 56 MOTION to Dismiss . filed by The State of New York. For the reasons stated above, Defendant's Motion To Dismiss is granted, and Plaintiff's request for court appointed counsel is denied without prej udice. Although this is the third adjudication of Plaintiff's claims, Plaintiff's claims are dismissed without prejudice. If Plaintiff wishes to file an amended complaint alleging additional facts and otherwise addressing the deficiencie s identified above, Plaintiff must do so within 30 days of the date of this Order. Specifically, Plaintiff may wish to sue the individuals he claims are responsible for the wrongs he allegedly suffered in their individual capacities. See, e.g., Yin g Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) ("As to a [§ 1983] claim brought against him in his individual capacity, however, the state official has no Eleventh Amendment immunity."). The amended complaint will replace, not supplement, the prior complaints. The failure to timely file an amended complaint may result in the dismissal of this Action with prejudice. The Court also warns Plaintiff that if he chooses to file an amended complaint that Defendan ts successfully move to dismiss, such dismissal may be with prejudice. The Clerk is respectfully directed to terminate the pending Motion, (see Dkt. No. 56), and mail a copy of this Order to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/22/23) (yv)
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Filing
50
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD: The complaint is dismissed without prejudice for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). If Plaintiff chooses to amend his complaint, he must su bmit the amended complaint to this Court's Pro Se Intake Unit within 30 days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 16-CV-8871 (KMK). An Amended Complaint form is attached to this order. If Plaintiff fails to submit an amended complaint within the time allowed and does not show good cause to excuse such failure, the Court will enter a civil judgment consistent with this order and direct the Clerk of Court to terminate this matter. Although the Clerk of Court issued summonses in this case, no answers are required until further notice by the Court. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Kenneth M. Karas on 1/3/2023) (vfr)
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Filing
37
OPINION AND ORDER: In sum, it is clear from the face of the Amended Complaint and the exhibits attached to it that Plaintiff failed to exhaust all available administrative remedies before filing suit, and that no exception to the exhaustion requireme nt applies. This action must therefore be dismissed. For the foregoing reasons, Defendants Motion To Dismiss is granted. Dismissal is without prejudice. See McCoy, 255 F. Supp. 2d at 252 (A dismissal for failure to exhaust is usually without prejudi ce, because failure to exhaust is ordinarily a temporary, curable, procedural flaw. (internal quotation marks and citations omitted). Plaintiff may re-institute suit after properly exhausting his administrative remedies or demonstrating their unavailability. See Lopez, 136 F. Supp. 3d at 584. SO ORDERED. (Signed by Judge Kenneth M. Karas on 12/21/2018) (jca)
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